Exhibit 4.1
SUBSCRIPTION AGREEMENT
To: Cedara Software Corp.
The undersigned (the "Purchaser") hereby irrevocably subscribes for
and agrees to purchase from Cedara Software Corp. (the "Corporation"), on the
terms and conditions set forth in this subscription agreement, 4,000,000
common shares in the capital of the Corporation (the "Shares" and individually
a "Share"). Each Share will be issued at a price of US.$1.875 per Share.
Conditions of Purchase
The Purchaser acknowledges that the Corporation's obligation to sell
the Shares to the Purchaser is subject to, among other things, the conditions
that:
(a) the Purchaser executes and returns to the Corporation all
documents required by applicable legislation and The Toronto
Stock Exchange for delivery on behalf of the Purchaser;
(b) all necessary regulatory approvals being obtained by the
Corporation prior to the Closing;
(c) the sale of the Shares is exempt from the requirement to
file a prospectus and the requirement to deliver an offering
memorandum under applicable securities legislation relating
to the sale of the Shares or the Corporation shall have
received such orders, consents or approvals as may be
required to permit such sale without the requirement of
filing a prospectus or delivering an offering memorandum;
and
(d) the representations and warranties of the Purchaser remain
true and correct as at the Closing.
Delivery and Payment
The Purchaser agrees that the following shall be delivered to the
Corporation prior to the Closing:
(a) one completed and duly signed copy of this subscription
agreement;
(b) all other documentation as may be required by applicable
securities legislation and The Toronto Stock Exchange,
including a duly completed Private Placement Questionnaire
and Undertaking in the form annexed hereto as Schedule "A";
and
(c) a certified cheque, bank draft or evidence of a wire
transfer in Canadian funds to the Corporation representing
the aggregate purchase price payable by the Purchaser for
the Shares. The entire subscription price for the Shares
must be paid at the time of subscription.
Delivery of the Shares by the Corporation and payment for the Shares
by the Purchaser shall be completed at a closing (the "Closing") to be held on
the first business day following receipt of approval from the Toronto Stock
Exchange of the issuance of the Shares contemplated hereby or at such time and
place as may be mutually agreed upon by the Corporation and the Purchaser,
provided that the Closing is held no later than on the day mandated by The
Toronto Stock Exchange for the closing of the issuance of the Shares
contemplated hereby.
The Corporation agrees that it shall deliver certificates
representing the Shares at the Closing for delivery against payment of the
subscription price. If the Purchaser chooses not to attend the Closing to
receive the Share certificates, then the Purchaser shall deliver such
certificates to the undersigned at the address set forth below promptly after
the Closing.
Purchaser's Representations and Warranties
The Purchaser represents, warrants and covenants to the Corporation
that:
(a) it (A) is an Accredited Investor, as defined in Paragraph 6
of Schedule "B" hereto, and (B) is aware that any sale of
Shares to it will be made in reliance on a private placement
exemption from registration under the United States
Securities Act of 1933, as amended (the "U.S. Securities
Act");
(b) it is purchasing the Shares for its own account and not with
a view to any resale, distribution or other disposition of
the Shares in violation of the United States federal, state
or any other securities laws;
(c) if it decides to offer, sell or otherwise transfer any of
the Shares it will not offer, sell or otherwise transfer any
of such securities, directly or indirectly, unless (i) the
sale is to the Corporation; or (ii) the sale is made outside
the United States in compliance with the requirements of
Rule 904 of Regulation S under the U.S. Securities Act; or
(iii) the sale is made within the United States pursuant to
the exemption from registration under the U.S. Securities
Act provided by Rule 144 thereunder, if available, and in
compliance with any applicable state securities laws;
(d) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits
and risks of its investment in the Shares and is able to
bear the economic risks of such investment;
(e) it has had access to such information concerning the
Corporation as it has considered necessary in connection
with its investment decision to acquire the Shares,
including without limitation the information available
through SEDAR, (▇▇▇.▇▇▇▇▇.▇▇▇) which the Corporation is
required to file as a consequence of being publicly listed
in Canada;
(f) it consents to the Corporation making a notification on its
records or giving instructions to any transfer agent of the
Shares in order to implement the restriction on transfer set
forth and described herein;
(g) the address set forth below is the true and correct address
of the place of business of the Purchaser at which it
received and accepted the offer to purchase the Shares;
(h) it has been independently advised as to and is aware of the
restrictions with respect to trading in the Shares pursuant
to the securities laws, regulations, rules, published policy
statements, rulings and orders of securities regulatory
authorities applicable to the Corporation or the Purchaser's
purchase hereunder (the "Securities Laws") and any
applicable stock exchanges;
(i) the Shares may not be sold in Canada or to Canadian
residents unless, in addition to the requirements of
paragraph (c)(ii), if applicable, the sale is made pursuant
to an available exemption from the prospectus and
registration requirements under the securities legislation
in the Canadian purchaser's province or territory of
residence or the required "hold" period has expired since
the acquisition by the Purchaser of the securities to be
sold;
(j) the Purchaser, and any purchaser for whom the Purchaser is
acting, will comply with all applicable Securities Laws and
with the rules and policies of any applicable stock
exchanges concerning the purchase of, the holding of and
resale restrictions on the Shares;
(k) if required by applicable Securities Laws or order of a
securities regulatory authority, stock exchange or other
regulatory authority, the Purchaser will execute, deliver,
file and otherwise assist the Corporation in filing such
reports, undertakings and other documents with respect to
the issuance of the Shares as may be required;
(l) the Purchaser's place of business is in the jurisdiction set
forth in its address in this subscription agreement;
(m) the Purchaser is capable of assessing its proposed
investment hereunder as a result of the Purchaser's
financial or investment experience, understands that an
investment in the Corporation involves a high risk and a
substantial risk of loss, and is able to bear the economic
loss of its investment;
(n) this subscription agreement has been duly and validly
authorized, executed and delivered by and upon acceptance by
the Corporation will constitute a legal, valid and binding
agreement of the Purchaser enforceable in accordance with
its terms;
(o) the Corporation has not made any representation to the
Purchaser regarding the intention of the Corporation to list
the Shares on any stock exchange or to make arrangements to
have the Shares quoted for trading;
(p) it is responsible for obtaining such legal advice as it
considers necessary in connection with the execution,
delivery and performance by it of this subscription
agreement and the transactions contemplated herein and it
represents and warrants that such execution, delivery and
performance shall not contravene any applicable laws of the
jurisdiction in which it is resident; and
(q) the purchase of the Shares by the Purchaser hereunder is not
a transaction in which any director or officer of the
Corporation, or any beneficial owner of securities carrying
more than 10% of the voting rights attaching to all
outstanding voting securities of the Corporation, has a
direct or indirect beneficial interest.
Purchaser's Acknowledgements
The Purchaser acknowledges that:
(a) none of the Shares have been, or will be, registered under
the U.S. Securities Act or the securities laws of any state,
and that the Shares are being offered in a transaction not
requiring registration under the U.S. Securities Act;
(b) no agency, governmental authority, regulatory body, stock
exchange or other entity (including, without limitation, the
United States Securities and Exchange Commission or any
state securities commission) has made any finding or
determination as to the merit for investment of, nor have
any such agencies or governmental authorities made any
recommendation or endorsement with respect to the Shares;
(c) the purchase of the Shares has not been made through, or as
a result of, and the distribution of the Shares is not being
accompanied by, a general solicitation or advertisement
including articles, notices or other communications
published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or
meeting whose attendees have been invited by general
solicitation or general advertising;
(d) the Shares are being offered for sale only on a "private
placement" basis;
(e) the representations and warranties and covenants contained
in this subscription agreement are made by it with the
intent that they may be relied upon by the Corporation in
determining its eligibility to purchase the Shares, and the
Purchaser hereby agrees to indemnify the Corporation against
all losses, claims, costs, expenses and damages or
liabilities which they may suffer or incur caused or arising
from their reliance thereon. The Purchaser further agrees
that by accepting the Shares the Purchaser shall be
representing and warranting that the foregoing
representations and warranties are true as at the Closing
with the same force and effect as if they had been made by
the Purchaser at the Closing and that they shall survive the
purchase by the Purchaser of the Shares and shall continue
in full force and effect notwithstanding any subsequent
disposition by it of the Shares;
(f) the sale and delivery of the Shares to the Purchaser is
conditional upon such sale being exempt, under applicable
Securities Laws or upon the issuance of such orders,
consents or approvals as may be required to permit such sale
without the requirement of filing a prospectus or delivering
an offering memorandum, from the requirement to file a
prospectus and the requirement to deliver an offering
memorandum;
(g) upon the original issuance thereof, and until such time as
the same is no longer required under applicable requirements
of the U.S. Securities Act or applicable state securities
laws, certificates representing the Shares, and all
certificates issued in exchange therefor or in substitution
thereof, shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 AS AMENDED (THE "U.S. SECURITIES ACT"), AND MAY
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO
THE COMPANY, (B) OUTSIDE THE UNITED STATES IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
U.S. SECURITIES ACT, OR (C) WITHIN THE UNITED STATES
PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE
U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER,
IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE
STATE SECURITIES LAWS."
"THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY
OF THE HOLDER HEREOF TO EFFECT GOOD DELIVERY OF THE
SECURITIES REPRESENTED HEREBY ON A CANADIAN STOCK
EXCHANGE. PROVIDED THAT THE COMPANY IS A "FOREIGN
ISSUER" WITHIN THE MEANING OF REGULATION S AT THE
TIME OF SALE, A CERTIFICATE WITHOUT A LEGEND MAY BE
OBTAINED FROM THE REGISTRAR AND TRANSFER AGENT IN
CONNECTION WITH A SALE OF THE SECURITIES REPRESENTED
HEREBY UPON DELIVERY OF THIS CERTIFICATE AND AN
EXECUTED DECLARATION, IN A FORM SATISFACTORY TO THE
REGISTRAR AND TRANSFER AGENT AND THE COMPANY, TO THE
EFFECT THAT SUCH SALE IS BEING MADE IN ACCORDANCE
WITH RULE 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT."
provided, that if the Shares are being sold outside the
United States in compliance with the requirements of Rule
904 of Regulation S under the U.S. Securities Act, and
provided that the Corporation is a "foreign issuer" within
the meaning of Regulation S at the time of sale, the legends
may be removed by providing a declaration to the registrar
and transfer agent, to the following effect (or as the
Corporation may prescribe from time to time):
"The undersigned (A) acknowledges that the sale of
the securities of Cedara Software Corp. (the
"Company") to which this declaration relates is being
made in reliance on Rule 904 of Regulation S under
the United States Securities Act of 1933, as amended
(the "U.S. Securities Act") and (B) certifies that
(1) the undersigned is not an affiliate of the
Company as that term is defined in the U.S.
Securities Act, (2) the offer of such securities was
not made to a person in the United States and either,
(a) at the time the buy order was originated, the
buyer was outside the United States, or the seller
and any person acting on its behalf reasonably
believe that the buyer was outside the United States
or (b) the transaction was executed on or through the
facilities of The Toronto Stock Exchange and neither
the seller nor any person acting on its behalf knows
that the transaction has been prearranged with a
buyer in the United States, (3) neither the seller
nor any affiliate of the seller nor any person acting
on their behalf has engaged or will engage in any
directed selling efforts in the United States in
connection with the offer and sale of such
securities, (4) the sale is bona fide and not for the
purpose of "washing off" the resale restrictions
imposed because the securities are "restricted
securities" (as such term is defined in Rule
144(a)(3) under the U.S. Securities Act), (5) the
seller does not intend to replace the securities sold
in reliance on Rule 904 of the U.S. Securities Act
with fungible unrestricted securities, and (6) the
contemplated sale is not a transaction, or part of a
series of transactions which, although in technical
compliance with Regulation S, is part of a plan or
scheme to evade the registration provisions of the
U.S. Securities Act. Terms used herein have the
meanings given to them by Regulation S."
and, provided further, that if any such Shares are being sold
pursuant to Rule 144 under the U.S. Securities Act, the legend may be
removed by delivery to the registrar and transfer agent of an opinion
of counsel of recognized standing reasonably satisfactory to the
Corporation, that such legend is no longer required under applicable
requirements of the U.S. Securities Act or state securities laws.
General
Each of the Corporation and the Purchaser acknowledges that:
(a) time shall, in all respects, be of the essence hereof;
(b) all references herein to "US$" are to lawful money of the
United States;
(c) the headings contained herein are for convenience only and
shall not affect the meaning or interpretation hereof;
(d) this subscription agreement constitutes the only agreement
between the parties with respect to the subject matter
hereof and shall supersede any and all prior negotiations
and understandings. This subscription agreement may be
amended or modified in any respect by written instrument
only;
(e) the terms and provisions of this subscription agreement
shall be binding upon and enure to the benefit of the
Purchaser and the Corporation and their respective
successors and assigns; provided that, except as herein
provided, this subscription agreement shall not be
assignable by any party without the written consent of the
others;
(f) the Corporation shall be entitled to rely on delivery of a
facsimile copy of this executed subscription agreement, and
acceptance by the Corporation of such facsimile shall be
legally effective to create a valid and binding agreement
between the Purchaser and the Corporation in accordance with
the terms hereof; and
(g) this agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the
laws of Canada applicable therein.
Subscription Particulars
(a) The aggregate number of Shares being subscribed for is
4,000,000
(b) The aggregate price of the Shares being subscribed for is
US$7.5 million
(c) The Shares are to be registered in the name of:
Analogic Corporation
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------
(d) The certificate representing the Shares is to be delivered
to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President and Chief
Financial Officer
at its office at:
Analogic Corporation
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ANALOGIC CORPORATION
Per: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
Address of Purchaser
Analogic Corporation
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This subscription agreement is accepted by the Corporation as of
September 27, 2001.
CEDARA SOFTWARE CORP.
Per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
and Corporate Secretary
SCHEDULE "A"
THE TORONTO STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING
To be completed by each proposed private placement purchaser of
listed securities or securities which are convertible into listed securities.
QUESTIONNAIRE
1. DESCRIPTION OF TRANSACTION
(a) Name of Issuer of the Securities
Cedara Software Corp.
(b) Number and Class of Securities to be Purchased
4,000,000 common shares.
(c) Purchase Price: US.$1.875 per common share for an aggregate
purchase price of US$7.5 million
(d) Penalty
None.
2. DETAILS OF PURCHASER
(a) Name of Purchaser Analogic Corporation
Address of Purchaser ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------
(b) Names and addresses of persons having a greater than 10%
beneficial interest in the Purchaser
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Charitable Remainder ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
▇. ▇▇▇▇ Price, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
3. RELATIONSHIP TO ISSUER
(a) Is the Purchaser, or any person named in response to 2(c)
above, an insider of the issuer for the purposes of the
Securities Act (Ontario) (before giving effect to this
private placement)? If so, state the capacity in which the
purchaser qualifies as an insider
NO
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(b) If the answer to (a) is "no", are the Purchaser and the
issuer controlled by the same person or company? If so, give
details
NO
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
4. DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
Give details of all trading by the Purchaser, as principal, in the
securities of the issuer (other than debt securities which are not convertible
into equity securities), directly or indirectly, within the 60 days preceding
the date hereof
NONE
-----------------------------------
UNDERTAKING
TO: The Toronto Stock Exchange
The undersigned has subscribed for and agreed to purchase, as
principal, the securities described in Item 1 of this Private Placement
Questionnaire and Undertaking. The undersigned undertakes not to sell or
otherwise dispose of any of the said securities so purchased or any securities
derived therefrom for a period of six months from the date of the closing of
the transaction described herein or for such period as is prescribed by
applicable securities laws, whichever is longer, without the prior consent of
The Toronto Stock Exchange and any other regulatory body having jurisdiction.
DATED AT Peabody MA, USA Analogic Corporation
-----------------------
(Name of Purchaser - please print)
this 27th day of September, 2001 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
(Authorized Signature)
PRESIDENT AND C.E.O
----------------------
(Official Capacity - please print)
(please print here name of individual whose signature appears above, if
different from name of purchaser printed above)
SCHEDULE "B"
DEFINITION OF ACCREDITED INVESTOR
"Accredited Investor" means any person who comes within any of the
following categories:
1. Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
US$1,000,000;
2. Any natural person who had an individual income in excess of
US$200,000 in each of the two most recent years or joint income with
that person's spouse in excess of US$300,000 in each of those years
and has a reasonable expectation of reaching the same income level in
the current year;
3. Any entity in which all of the equity owners are accredited
investors;
4. Any bank as defined in Section 3(a)(2) of the U.S. Securities Act or
any savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the U.S. Securities Act whether acting in its
individual or fiduciary capacity; any broker dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934; any
insurance company as defined in Section 2(13) of the U.S. Securities
Act; any investment company registered under the Investment Company
Act of 1940 or a business development company as defined in section
2(a)(48) of that Act; any Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958; any plan established
and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of
US$5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of
such Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of US$5,000,000, or,
if a self-directed plan, with investment decisions made solely by
persons that are accredited investors;
5. Any private business development company as defined in Section
202(a)(22) of the Investments Advisers Act of 1940;
6. Any organization described in section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust,
or partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of US$5,000,000;
7. Any director, executive officer, or general partner of the issuer of
the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer; and
8. Any trust with total assets in excess of US$5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person, being defined as a
person who has such knowledge and experience in financial and
business matters that he or she is capable of evaluating the merits
and risks of the prospective investment.